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Part 5: Fox Odoi & others v AG & lack of fidelity to Constitutional court precedents

FILE President Museveni with judges

FILE President Museveni with judges

This column has endeavoured, over its previous four editions, to explain why Ugandans – in their plurality and diversity – have very much to fear from the decision rendered by five justices of the Constitutional court in the case of Fox Odoi and Others v Attorney General and Others (Consolidated Constitutional Petitions Nos 14, 15, 16 and 85 of 2023), handed down on 3rd April 2023.

In truth, it might require over twenty editions of this column – or even more – to fully elaborate the true depth and breadth of the constitutional damage effected by this decision. However, considerations of space (and a sensitivity to the patience of this column’s readers) inevitably make this unavailing. My hope is that all Ugandans take the trouble to read the decision (all 203 pages of it) for themselves – with an open mind – and reach their own conclusions as the findings reached, and the reasons provided for them.

For ease of reference, I might point out the relevant pages at which these rights are treated: human dignity (pages 71-109); equality and non-discrimination (pages 109-129); privacy (pages 130-141); expression and association (pages 141-166); profession, occupation and business (pages 166-173) and health and property (pages 174-200).

They might find, as I did, that the Constitutional court chose to impose on constitutionally guaranteed human rights the extra-legal and distinctly arbitrary test of communal or social approbation, with the result that all of those rights are now effectively subordinated to the vicissitudes of public opinion.

Today, I want to simply identify one foundational problem which runs through the decision – from its first page to its last – that is to say a patent inconsistency between its letter and spirit, on the one hand, and the previous jurisprudence of the Constitutional court itself (and of the Supreme court in its capacity as an appellate court in constitutional matters) on the other.

Last week, I pointed out two examples of this: i) the difference between the restrictive approach adopted by the Constitutional court in Fox Odoi with respect to freedom of expression (including academic freedom) and the more expansive approach established by the Supreme court in Charles Onyango Obbo and Another v Attorney General (Constitutional Appeal No.2 of 2002, a decision rendered on 11th February 2004); and ii) the fact that the Constitutional court in Fox Odoi cited, and relied upon (at page 160, Paragraph 424), a provision of the Anti-Pornography Act of 2014 – Section 13  (1) to be exact – which had been declared unconstitutional by the Constitutional court itself, in the case of CEDOVIP and Others v Attorney General (Constitutional Petition No.13 of 2014, a decision rendered on 13th August 2021).

The Constitutional court is supposed to clarify the text of the Constitution. This is the essence of its mandate under Article 137 (1) of the 1995 Constitution, which simply states: ‘Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the Constitutional court’.

Unfortunately, in various parts of the decision in Fox Odoi, the Constitutional court clouded, rather than clarified, significant portions of the Constitution, leaving their meaning, scope and application in doubt going forward. Relatedly, under Article 137 (3) of the Constitution, the Constitutional court is vested with the authority of determining whether an Act of Parliament (or any other law or anything in or done under the authority of any law), or any act or omission by any person or authority, is consistent with the Constitution.

Can the mandate under clause 3 of Article 137 be effectively discharged if that under clause 1 is ineffectively handled? I do not think so. An additional example – one of several – can be cited today as to the incongruence between Fox Odoi and the Constitutional court’s own previous jurisprudence: a comparison, even cursory, of the decision of the Court in Fox Odoi on the one hand, and that of the Court in Adrian Jjuuko v Attorney General (Constitutional Petition No.1 of 2009, a decision rendered on 10th November 2016).

The Adrian Jjuuko case involved a challenge to Section 15 (6)(d) of the Equal Opportunities Commission Act of 2007. Incidentally, the Act itself had been very belatedly enacted – since Article 32 of the Constitution, which had required the establishment of the Commission, was a feature of a Constitution enacted in 1995.

Even then, the Act in its creation included the strange provision – Section 15 (6) (d) – which barred the Commission from investigating: ‘any matter involving behaviour which is considered to be immoral and harmful, or unacceptable, by the majority of the cultural and social communities in Uganda.’

The petitioner argued that this provision was inconsistent with, among others, Articles 20 and 21 (on equality and non-discrimination) and Article 28 (on a fair hearing). The Constitutional court agreed, observing: ‘[T]he EOC Act was aimed at promoting equality of opportunities for all persons in Uganda irrespective of gender, age, physical ability, health status or geographical location.

The EOC is an Act whose policy basis was to be concerned with issues of marginalization, discrimination injustice, exclusion, unfairness and inequality in access to resources, services and benefits … The overriding objective of the EOC Act was to give effect to the State’s constitutional mandate to eliminate discrimination and inequalities against any individual or group of persons on the grounds of sex, age, race, color, political opinion and any other reason created by history, tradition and custom for purposes of redressing imbalances which exist.

Ideally s.15 (6) d of the EOC Act should be in conformity the Constitutional and policy objectives outlined above … A close analysis of s. 15(6) d brings out that the broad mandate of the EOC excludes investigation into certain groups. Indeed s.15 (6)(d) specifically prohibits the EOC from investigating complaints of persons considered to be immoral, harmful or unacceptable.

If the persons mentioned in s.15(6)d appeared before the Commission, they would likely be excluded from any form of hearing. This section clearly restricts the right to a fair hearing. The right to a fair hearing is a rule of universal application in administrative acts or decisions which affect the human rights of an accused or the individual against who such harm may occur … A law that precludes a group of people from adjudication on violation of their rights and does not create an alternative forum to hear them out breaches the right to a fair hearing.

We therefore conclude that s.15(d) impedes the right to a fair hearing for the category of whose matters cannot be investigated … Having cautiously examined the S.15(6)d of the EOC Act as against Articles 20, 21, 28 and 43 of the Constitution (1995), we find that the impugned section indeed contravenes Articles 20, 21, 28 and 43 of the Constitution of Uganda by: 1) creating a class of social misfits who are referred to as immoral, harmful and unacceptable; 2) legislating the discrimination of persons said to be immoral, harmful and unacceptable; and 3) den[ying] access of justice to that class/ section of people by prohibiting the Equal Opportunities Commission from investigating persons who it adjudges immoral, socially harmful and unacceptable …’

What is especially striking in the Adrian Jjuuko case is the Constitutional Court’s recognition of the importance of constitutional principle over social or communal animus. In particular, the Court recognized that the effect of Section 15 (6)(d) of the EOC Act was to relegate a group of Ugandans to the status of ‘second class citizenship’ and to ‘legislate discrimination’ entirely based on social disapproval and communal censure.

The Constitutional court in Fox Odoi was faced with substantially similar legal issues, and would have been expected to adopt a substantially similar approach as it did in Adrian Jjuuko. Instead, in Fox Odoi, the Court took a markedly different angle, in which public opinion was allowed to diminish constitutional rights – and constitutional citizenship.

In Fox Odoi, for instance, the Court variously referred to the need to ‘forestall unnecessary social disquiet, upheaval and instability’ (Page 97, Paragraph 249); the importance of avoiding ‘unnecessary social unrest and disregard for the letter of the law’ (Page 102, Paragraph 263); the imperative to ‘avert public disquiet and undue social upheaval’ (Page 164, Paragraph 438); and the notion of ‘balanc[ing] individual rights with the socio-cultural sensitivities and public morality concerns of the larger Ugandan society’ (Page 165, Paragraph 438).

This prioritization of public opinion over constitutional principle is yet another striking similarity between Fox Odoi and the infamous decision of the United States Supreme Court decision in the 1857 case of Dred Scott v Sandford.

Writing for the majority which concluded that African Americans had not been intended be included as ‘citizens’ under the US Constitution, Chief Justice Roger Brooke Taney variously referred to ‘the state of public opinion in relation to that unfortunate race’, and observed that: ‘[t]hey had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.

He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.’ This is the language in Dred Scott, which is strongly mirrored in Fox Odoi.
At the same time, evidently, it is absolutely impossible to reconcile the text, logic and spirit of the Fox Odoi decision with the views of the Court itself in its earlier decision in Adrian Jjuuko. This is deeply problematic. On account of the long-held principle of stare decisis, the Constitutional court in Fox Odoi was duty bound to refer to, and rely upon, the decision and rationale in Adrian Jjuuko, especially since this case had been explicitly referred to in the proceedings.

The notion of stare decisis – literally meaning ‘to stand by things decided’ in Latin – requires courts to adhere to previous decisions, especially those of courts at the same, or higher, levels. This is aimed at promoting certainty and predictability in the law and, conversely, avoiding arbitrary, biased or prejudiced decision-making.

Certainly, a court can depart from its own previous decision(s). However, the practice in this regard is that it must expressly refer to the decision(s) it wishes to depart from, and clearly explain the reasons for such departure. It is quite strange (to say the very least), that the Constitutional court in Fox Odoi made absolutely no mention of its previous decision in Adrian Jjuuko, especially since this case was brought to the attention of the Court.

It is even more strange – and telling – that some of the language in Adrian Jjuuko (but not the case itself) found its way into the Fox Odoi decision. This is most evident at Page 200, Paragraph 533 of the decision, in which the Court acknowledges that one of the declarations sought by the petitioners was that the impugned Act: ‘institutionalizes a culture of hatred and creates a class of social misfits in contravention of Articles 2(1) and (2), 20, 24 and 44(a) of the Constitution’.

Clearly, the phrase ‘creates a class of social misfits’ is directly lifted from the Adrian Jjuuko case. How is it possible then, that nowhere in the Constitutional court’s 203-page decision in Fox Odoi, is the Adrian Jjuuko case cited? Can any reasonable, fair or open-minded Ugandan citizen deny the glaring anomaly presented by this position?

Indeed, the failure by the Constitutional court in Fox Odoi to cite, and refer to, Adrian Jjuuko potentially leads us into the arena of per incuriam – the legal doctrine which describes a judicial decision that fails to take due account of precedent binding on the Court. Such an anomaly – at the very least – substantially diminishes legitimacy of the decision in question.

Ideally, we should have ended the analysis of Fox Odoi here. However, there are two other fundamental issues in that decision which require attention, given their important (and negative) implications for the future adjudication of constitutional matters: i) the principles of, and approach to, constitutional interpretation; and ii) the questions as to relevant presumptions, burdens of proof and related procedural questions implicated in constitutional cases. I crave the indulgence of the readers, and editors, of this column to permit a final treatment of these issues in next week’s edition.

The writer is senior lecturer and acting director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches constitutional law and legal philosophy.

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